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Recent Shorelines Hearings Board Decisions Require Consideration of Cumulative Impacts

September 19, 2007

Recent decisions by the Washington State Shorelines Hearings Board (“SHB” or “Board”) determined that cumulative impacts analysis was warranted in deciding whether to grant a shoreline substantial development permit (“SDP”). In these recent cases, the Board rejected applications for docks or piers to be built on shorelines in part because of the cumulative impact of shoreline development. The Board also made it clear that cumulative impacts analysis may be triggered by SDP applications, even in the absence of an express requirement by the local shoreline master program.

I. Governing Law

The Washington State legislature enacted the Shoreline Management Act of 1971 (“SMA”)[1] to prevent the “uncoordinated and piecemeal development of the state’s shorelines.”[2] “Shorelines of the state” include shorelines and shorelines of statewide significance within the state.[3] Under the SMA, local governments develop a shoreline master program for the use and development of shoreline areas within their jurisdiction.[4] Local governments also develop and implement a shoreline permit system, which encompasses SDPs, Shoreline Conditional Use Permits (“SCUP”), and variances, for shoreline development. Under the SMA, a SDP is a permit issued for a development that will cost over $5,000, or which “materially interferes with the normal public use of the water or shorelines of the state,”[5] with exceptions, including normal maintenance and repair of existing structures and certain farming and irrigation activities.[6]

Local governments consider whether a proposed development is consistent with the policies and procedures of the SMA and associated regulations, and the applicable local master program,[7] and issue or deny SDP permit applications. Under SMA regulations, consideration of cumulative impacts is not a mandatory criteria used to evaluate SDPs, although local planners must consider cumulative impacts in reviewing conditional use permits or variances. A local government’s decision is then provided to the applicant, and is concurrently filed with the Department of Ecology (triggering the “date of filing”). A party may appeal the local government’s decision in approving or denying a SDP to the SHB within 21 days from the date of filing with Ecology.[8]

II. Recent Cases

A. Fladseth v. Mason County

In Fladseth v. Mason County,[9] the Board considered Petitioners Loren and Jeannie Fladseth’s appeal of Mason County’s denial of a SDP for a joint use pier, ramp and float (“PRF”) project located on the north shore of Hood Canal in Mason County. The north shore of Hood Canal is relatively undeveloped in comparison to the south shore. Only 21 docks have been constructed along the north shore, while approximately 146 docks have been constructed on the south shore.[10]

Petitioners prepared a Biological Evaluation for the PRF proposal in January of 2005. The Biological Evaluation noted scientific uncertainty over whether salmon migration was affected by the presence of overwater structures, such as the proposed PRF. The Biological Evaluation did not address the cumulative impact of docks on the north shore.[11]

Mason County recommended denial of the proposed project. Among other factors, the County was specifically concerned with maintaining the natural character of the shoreline, and “limiting the cumulative impact of piers and docks on the shoreline.”[12] The County considered the extent of development on the Hood Canal and the cumulative effect of additional overwater structures on views, recreational uses, and environmental quality. The County Planner determined that he should not evaluate the PRF proposal in isolation because the construction would likely lead to others. The Mason County Hearing Examiner denied Petitioners’ application on August 30, 2005.

On appeal to the Board, Petitioners raised the issue of whether cumulative impacts and concern for establishing a precedent that would encourage additional development were valid legal considerations or proper bases to deny Petitioners’ SDP.[13] Petitioners’ argued that cumulative impacts are not criteria required to be considered under the Mason County SMP or SMA regulations when deciding on shoreline SDPs.

The Board acknowledged that cumulative impacts are not mandatory considerations under SMA regulations, neither is the Board precluded from considering cumulative impacts. The Board cited its April 2007 decision in May v. Pierce County[14] for the proposition that cumulative impacts analysis may be appropriate in “cases where there is a clear risk of harmful impacts to high value habitat, loss of community uses, impacts to views or the loss of extraordinary aesthetic values.”[15]

The Board also addressed the County’s argument that Mason County SMP 7.16.170(b)(3) imposes a general requirement for cumulative impacts analysis applicable to SMPs for docks and piers. This general requirement derives from a provision in Mason County’s SMP that requires “the type, design, and location of docks and piers to be compatible with adjacent land and water uses.”[16] The Court found that it had no reason to disagree with the County’s interpretation that the SMP requires cumulative impact analysis as part of the permitting process associated with construction of such structures, and decided that cumulative impact analysis is required under Mason County Code.[17]

1. Guidance for Application of Cumulative Impacts Analysis

Significantly, the Board provided additional guidance on the circumstances that would support cumulative impacts analysis, in the absence of a SMP provision requiring it.

The Board first noted that the Legislature, in WAC 90-58-020 (relating to shorelines of statewide significance), emphasized “that it is important for shorelines to be able to provide their natural functions as shorelines.”[18] The Board indicated that relevant natural functions include views and aesthetics, recreational opportunities, and environmental values, which may be compromised by development. While not definitive, these values may be more compromised in an area that has already experienced substantial development. Consequently, the Board observed that the additional potential development of an area would therefore be an important factor in a cumulative impact analysis. Nevertheless, the Board observed that even a substantially developed area could produce high environmental impacts, thereby precluding the use of this factor as a bright-line rule.

The Board found that “consideration of potential cumulative effects and precedential effects is warranted in any case where there is proof of impacts that risk harm to habitat, loss of community use, or a significant degradation of views and aesthetic values. In such cases, a balancing of the interests of project proponents, adjacent shoreline property owners, and those of the public is necessary.” In Fladseth, the Board found that the balance weighed in favor of prohibiting further development. The Board’s discussion of cumulative impacts analysis may serve as an invitation to frequently require a cumulative impacts analysis as part of the permitting process even in the absence of an express provision in SMPs.

B. May v. Pierce County: Reversing Pierce County’s Approval of a SDP for a PRF in Puget Sound’s Hale Passage.

In May v. Pierce County,[19] decided the month before Fladseth, the Board considered whether cumulative impacts analysis was warranted as part of the criteria required to be considered in SDP applications. This case involved a proposed development in Pierce County, which unlike Mason County, does not have a SMP regulation requiring cumulative impacts analysis during permit evaluation.

In May, the SHB considered whether application of cumulative impacts analysis was appropriate when deciding on a SDP for a PRF to be located on Puget Sound’s Hale Passage. The proposed project site was a long stretch of no-bank beach “considered by some to be ‘perhaps the most beautiful beach in Pierce County.’”[20] A single 50-foot long, joint use PRF is located about 300 feet to the west of the proposed project site.

Pierce County approved the SDP for the PRF in August of 2006, and Petitioners appealed.[21] In reversing Pierce County’s approval of a joint use SDP for the PRF, the Board rejected Respondent’s argument that the cumulative effects of a project are not among the criteria required for consideration under SMA regulations. The Board observed that while cumulative impacts are not mandatory criteria for consideration in shoreline SDPs, the Board is not precluded from considering cumulative impacts and discussed where consideration of cumulative impacts was appropriate.

In May, the Board stated that consideration of cumulative impacts is appropriate where there is a “clear risk of harmful impacts to high value habitat, loss of community use, the impact to views and the extraordinary aesthetic values of the area.”[22] The Board noted the potential impact to various protected salmon species and habitat, visual impact, loss of recreational opportunities, and emphasized the fact that this would be the first dock in a relatively undeveloped stretch of sandy beach. In such a case, the Board observed, balancing the interests of shoreline property owners and those of the public is necessary, and the interests of the public prevailed yet again over those of the property owners who proposed to construct the PRF.[23]

C. McCauley v. Mason County: Upholding Mason County’s Denial of a SDP on a Developed Area of Hood Canal

In McCauley v. Mason County,[24] decided after Fladseth and May, the SHB again considered when it is appropriate to consider cumulative impacts when evaluating a SDP for a PRF. Unlike in Fladseth and May, the proposed project site in this case was a developed area of Hood Canal’s south shore. Mason County denied Petitioner’s application for a SDP for a PRF, and Petitioners appealed.[25]

Petitioners raised several issues before the SHB, including whether Mason County erred in applying a cumulative impact analysis when reviewing a project that is an authorized use under the Mason County SMP. Referring to its prior decision in Fladseth, the Board first found that cumulative impact analysis is required by Mason County’s SMP. The Board next found that the circumstances of this case would require cumulative impacts analysis using the factors enunciated in Fladseth. First, the Board observed that “cumulative impacts on a shoreline of statewide significance, like the McCauley project, are more likely to be considered than cumulative impacts of a project on a less significant shoreline.”[26] The Board further noted the fragile nature of the shoreline, and the potential impact of development on protected salmon species and habitat. Moreover, and despite the developed nature of the project area, the Board found that the evidence indicated that the large number of docks already located in the area present substantial obstacles to salmonid migration, and that approval of this, and other, projects could cumulatively and adversely affect the area. The Board once again rejected the development proposal.

The SHB’s decisions in both May v. Pierce County and McCauley v. Mason County have been appealed to Pierce County Superior Court and Mason County Superior Court, respectively

IV. Conclusion

The decisions in Fladseth, May, and McCauley all required cumulative impacts be considered in reviewing SDPs for piers and docks.

[1] RCW 90.58.

[2] RCW 90.58.020.

[3] RCW 90.58.030(2)(c).

[4] RCW 90.58.030(3)(c).

[5] RCW 90.58.030(3)(e).

[6] WAC 173-27-040.

[7] WAC 173-27-150.

[8] RCW 90.58.180.

[9] Fladseth v. Mason County, SHB Case No. 05-026 (Findings of Fact, Conclusions of Law and Order, May 1, 2007).

[10] Id. at 5.

[11] Id. at 6.

[12] Id. at 9 (emphasis added).

[13] Id. at 12.

[14] May v. Pierce County, SHB No. 06-031 (Findings of Fact, Conclusions of Law and Order, April 2007).

[15] Id. at 21, citing May, SHB No. 06-031 at 30.

[16] Id. at 22, citing MCSMP 7.16.170(b)(3) (emphasis added).

[17] Id. at 23.

[18] Id. at 23-24.

[19] May v. Robertson et al., SHB No. 06-031 (Findings of Fact, Conclusions of Law and Order, April 2007).

[20] Id. at 5.

[21] Petitioners Greg and Margo May and other shoreline waterfront property owners in Gig Harbor challenged Pierce County’s approval of Respondents Robertson and Svinsland’s SDP for a PRF and SCUP for a floating watercraft lift to serve their Pierce County waterfront property. Only the SDP for the PRF is addressed in this newsletter.

[22] May, SHB No. 06-031 at 30.

[23] Id.

[24] McCauley v. Mason County, SHB No. 06-033 (Findings of Fact, Conclusions of Law and Order, June 15, 2007)

[25] Id. at 8.

[26] Id.

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